1974 Supreme(Pat) 152

HIGH COURT OF PATNA
S.N.P. SINGH & N.P. SINGH, JJ.
Mt. Bimla Devi & Anr. - Petitioner
Vs.
Shobhanath Mahmarik & Nine ors – Opposite Party
Cr. Rev. No. 1919 of 1970
Decided on : 13.8.1974

Headnote:Code of Criminal Procedure (V) of 1898 Sec. 107, 144 & 145 - Proceeding under Section 144 converted into one under Section 145 - Order converting the proceeding not disclosing apprehension of breach of peace or grounds of his satisfaction - Order whether vitiated - Requirements of clause (1) of Section 145 - Conversion whether amounts to drawing of afresh proceeding.

       Where after the final order was passed in the proceeding u/s 145 Cr. P.C the argument advanced before the High Court in revision was that since the order converting the proceeding from Sec. 144 Cr. P.C. does not fulfil the requirements of clause (1) of Sec. 145 and as such even the final order passed is vitiated,

       Held, that it is true that there is no specific provision in the Code for converting the proceeding either under section 144 or under section 107 into one under section 145, and it has to be held that, for all practical purposes, when it is stated that any such proceeding is being converted into one under section 145, it amounts to drawing up a proceeding under section 145. The Magistrate while converting the proceeding under section 144 or Sec. 107 into one under section 145 of the Code, he is in a much better position since he had advantage of perusing, besides other materials, show cause and documents filed by the parties for basing his satisfaction. If the order drawing up the proceeding under section 145 of the Code is passed during the subsistence of the proceeding under Section 144, then it is futile to urge that there was no material before the Magistrate to base his satisfaction that there was an apprehension of a breach of the peace; because obviously, in these circumstances, if there was no such satisfaction, the Magistrate would drop the proceeding, instead of starting a proceeding under section 145, after hearing the parties in the proceeding under section 144. The same can be said with a Magistrate converting a proceeding under section 107 into one under section 145 of the Code, of course, the matter will stand on different footing if the proceeding under section 144 had spent its force due to the lapse of the statutory period prescribed under Sub-Sec. (6) of Sec. 144, that is, after a lapse of two months from the date of the making of the intial order under section 144. (Paras 13 & 16)

       Section 145, 439 - Subjective satisfaction of the Magistrate for initiating proceeding under section 145 - Requirements of - High Court when can interfere under its revisional jurisdiction - Party aggrieved by final order can not challenge the initial order on the ground of non-compliance of the Section - Non-mention of existence of a breach of the peace is not fatal.

       Held, that the condition precedent to the exercise of jurisdiction under section 145 (1) is the satisfaction of the Magistrate regarding the existence of an apprehension of a breach of the peace concerning some land, and not his stating or not stating the grounds of his such satisfaction in the order drawing up the proceeding. In appropriate cases it is open to this court to look into the materials to satisfy itself as to whether there were materials on which the Magistrate could have been satisfied that an apprehension of a breach of the peace concerning some land existed and once this court is satisfied that there were materials, then it is not open to this court to weigh these materials. If the Magistrate has passed an order under section 145(1), without there being any proceeding under section 144 or 107 and in that order, if he has not stated that he was satisfied regarding the existence of an apprehension of a breach of the peace relating to land and the grounds on which he was so satisfied, any party aggrieved by the said order can approach this court for setting aside that order at that stage, and such order can be quashed under revisional powers. Once it is held that the order drawing up the proceeding under section 145 was not without jurisdiction, the final order passed in the said proceeding can not be quashed merely on the ground that the initial order drawing up the proceeding was not strictly in terms of Sec. 145(1) of the Code. (Paras 13, 17 & 18)

       Held, further that the view taken by the Bench in Ram Saroop Singh, (1970 B.L.J.R. 1207 and in Jiut Dusadh, 1970 B.L.J.R. 776) are in consonnance with the decision of the Supreme Court in R.H. Bhutani; (A.I.R. 1968 S.C. 1444). (Para 15)